Tribal representatives told the judges that a broad decision could affect Native Americans in other areas. But it didn’t appear more than three hours of pleadings that there was a majority of judges happy to leave the law as it was.
The law is being challenged by seven individuals and three states, led by Texas. The plaintiffs argue that the law requires state officials to set aside the traditional norm of doing what is best for the child and relies on racial discrimination in ways the Constitution does not permit. .
Five of the court’s six conservatives posed skeptical questions to lawyers representing the Biden administration and Indian tribes to defend the law, and Judge Brett M. Kavanaugh asked the question that he said was at the heart of a difficult case.
“On the one hand, the great respect for tribal autonomy for the success of Indian tribes with Indians – with the recognition of the history of oppression and discrimination against tribes and peoples,” said Kavanaugh . “On the other hand, the fundamental principle that we do not treat people differently because of their race, ethnicity or ancestry, equal justice under the law.”
But conservative Justice Neil M. Gorsuch, who was a strong supporter of Indian rights in his time on the Supreme Court, joined the court’s three liberals in vigorously defending Congress’ prerogative to pass the law, as well as the idea that judicial humility required leaving one’s place.
“You can question politics, you can’t question politics, but Congress is where the policy is to be made.” And Congress understood that placement decisions for these children were integral to the continued prosperity of Indian communities,” Judge Elena Kagan said, adding, “It’s not something we can guess at, isn’t it? it not?
“It’s under the Constitution, your honor,” replied Washington attorney Matthew D. McGill, who represented a white couple from Texas who adopted an Indian child and want to adopt that child’s half-sister. . “Congress has no authority to treat these children as tribal property because of their ancestry.”
The case is before a court, led by Chief Justice John G. Roberts Jr., who is increasingly skeptical of the government’s reliance on racial classifications, after signaling last week that he was open to the end of positive discrimination in university admissions.
On Wednesday, Kavanaugh asked Deputy Solicitor General Edwin S. Kneedler if Congress’s broad authority over Indian affairs gave him the power to “mandate that states give preference to Native Americans in college admissions?”
Kneedler said such a position would be harder to defend than ICWA because college admissions are less about tribal preservation and “collide” with the interests of others.
But he agreed with Kavanaugh’s suggestion that Congress “couldn’t give preference to white families for white kids, black families for black kids, Latino families for Latino kids, Asian families for Asian children.
Those decisions would be based on race, Kneedler said, while ICWA’s preferences are political — based on membership in federally recognized tribes.
Where custody and adoption proceedings take place in state rather than tribal courts, ICWA establishes a placement hierarchy for Indian children, preferring the child’s extended family first, then tribal members. of the child, then another Indian family even if they are from another tribe and then a non-Indian household.
Two members of the court, Roberts and Judge Amy Coney Barrett, are adoptive parents. Roberts was particularly concerned that the law avoided traditional custody decisions that put the child first.
“Do you think ICWA incorporates the familiar best interests of the child inquiry that is applied in family courts across the country?” Roberts asked. McGill said no.
But Ian H. Gershengorn, representing Native American tribes, said Congress has provided other flexibility in a way that child welfare the professionals said in amicus briefs that it was the “gold standard” for the placement of children.
Despite the preferences of the law, courts can take into account “the opinions of the parents, the opinions of the child, if the child is old enough to express them,” Gershengorn said. “You can take into account the fraternal attachment. You can take into account the bond with the adoptive parents, as long as it was not done illegally by the ICWA. The thing that you cannot take into account, it’s socio-economic status.
Roberts, Barrett and Judge Samuel A. Alito Jr. expressed concern about the law’s third priority, placing the child with another Indian family, even if it is not from the same tribe. “Let’s assume I agree with you that these are political classifications – this just treats Indian tribes as fungible,” Barrett said.
But Gershengorn said priority almost never came into play, and when it did, it was with members of a tribe that shared land with the child’s tribe. There was no evidence of what he called a “Maine to Arizona” adoption. He also said the court could remove this third requirement and leave the law in place.
The case came to the Supreme Court of the United States Court of Appeals for the 5th Circuit, where part of the law was upheld and part was found to be unconstitutional. The complicated decision ran 325 pageswith the opinion of six judges.
Gorsuch and the liberal justices seemed convinced that Congress had the power to implement the law, which Gershengorn said had been studied for four years and intended to rectify a past in which studies have shown that 25-35% of Aboriginal children were taken from their parents to be placed in foster care or adopted. Over 85% of placements were in non-Aboriginal homes.
After getting McGill to accept the broad authority Congress has to regulate commerce, health care, and other matters concerning Native Americans, Gorsuch concluded, “I guess I have a hard time understanding why this falls out of across the line as Congress makes the judgment that this is essential to… the self-preservation of the Indian tribes.
Judge Sonia Sotomayor listed numerous ways Congress has regulated Indian affairs and pushed back against the idea that state courts implementing the law are being restricted from making the best choice for the child.
“All of these parents, even to be in the running, have to be competent parents, right?” she asked Kneedler. So “the question is a question of politics. Where will you place the child among these competing skilled guardians, right? »
Judge Ketanji Brown Jackson said it was a choice of Congress. It “really boils down to a fundamental question that often comes up in the law, namely, who decides? said Jackson. “Who decides whether regulation in this area counts for Indian self-government? »
But McGill said the court also has a role to play.
The children involved “are human beings”, he said. “They are citizens of the United States and the states in which they reside…and they have liberty interests that the tribe cannot override simply by enrolling them unilaterally.”